Best Practices in Counseling? Ethical Practices in Counseling?

This morning, on the WBUR (Boston) radio station, a criminal trial professor (from New York) was discussing the case of Dzhokhar Tsarnaev, recently convicted of the bombing of the Boston Marathon two years ago, with hosts Margery Eagan and Jim Braude.

As you may be aware, the punishment phase of the case began today – the question is whether Tsarnaev will get the death penalty or life in prison. The hosts asked whether the defense would be able to argue, to mitigate the punishment and try to avoid the death penalty for their client, that the older brother, Tamerlan, who died in a police shootout (and after being run over by his brother!), was the one truly behind the bombing — essentially that Dzhokhar was “under the influence” of his brother.

The lawyer being interviewed was asked whether, if Dzhokhar doesn’t want to use that defense, but rather considers his brother to be a hero in avenging US aggression overseas (comments he scrawled in ink and blood on the tarp covering the boat in which he hid before being arrested), could Dzhokhar deny his lawyers permission to use that defense theory. The lawyer said that it is clear that he could not forbid his lawyers from arguing that, and opined that these were merely “trial” tactics that are not in the client’s control, but rather in the hands of the lawyers.

I was frustrated that the radio show was not taking calls, as I was eager to dispute that conclusion, and to point out that this type of lawyering is far different from that which we in the clinical community practice as we guide our students through the principles of client-centered lawyering. It was anathema to me to hear the role of the client completely discounted.

Criminal law is not my expertise, but it made me wonder whether my assumptions about clinical teaching don’t apply in criminal and/or death penalty clinics. In a death penalty case, after conviction, at the sentencing stage, does the defendant lose the right to control his/her defense? I’m eager to hear the views of those teaching criminal clinics.

Teaching the Students We Have – The Changing Student Body

Yesterday’s Bloomberg Business article leads with a startling headline:  The Smartest People Are Opting Out of Law School. It seems that while law school matriculation numbers have been declining, in addition, far fewer people with high LSAT scores have been deciding to enroll in law school at all. So while the total number of new students continues to decrease, the proportion of lower-LSAT-scoring students is actually increasing.

Leaving aside the temptation to question the validity of the LSAT for predicting whether someone can or will become an effective lawyer, the test is among the best predictors of how well students do in their first year of law school and how likely they are to pass the bar.  Among other things, if students with lower LSAT scores are increasingly going to law school, but not able to succeed, perhaps admissions standards should be tightened as a matter of ethics and integrity. Why string along students whom we can predict will have difficulty achieving mandatory milestones like bar passage? An honest response would include the obvious conflict of interest – law schools need students in order to survive. But society continues to need well-educated lawyers too.

The ongoing effort to improve legal education needs to explicitly embrace students who don’t tend to do particularly well on high-stakes tests like the LSAT, first-year law school exams, or the bar. Even schools who have long administered healthy academic assistance programs may need to consider whether changes should be made. The facts cited in this article could spur faculty to hold discussions about building a curriculum for the students we have – not the students we used to have, or the students we wished we had. By re-envisioning both teaching methods and programmatic structures, schools can both adapt to changing conditions and help students learn and perform well.  Re-focusing a program of legal education to teach the students who are there, not the students who might have attended a decade ago, could invigorate the profession, opening doors that allow less-privileged, more diverse, and otherwise nontraditional students to succeed and excel.

Best Practices in Interviewing – an Ethical Conundrum from the Office of an Immigration Clinic

In recent years a term has been coined describing the unfortunate links that have grown up, over the past nearly 20 years, between immigration law and criminal law: crimmigration. Many criminal lawyers have realized the need to educate themselves about the pitfalls they can inadvertently create for their immigrant clients when recommending various plea options, pitfalls that can result in deportation. Crimmigration is also relevant on the other end of representation – during an initial interview. It is at this point in the representation, the beginning, or even “before the beginning” (the person may not yet be a client) when the lawyer, or student-lawyer, is receiving details about the case, that difficult lessons about interviewing need be learned. It is at this point where student supervision in an immigration clinic reminds me of criminal defense.

The theory of criminal defense is, of course, that the state needs to prove its case against the defendant. Because the defendant is not obliged to help the state do that, it is less important that the client tell the lawyer “what happened” than for the lawyer to ascertain “what evidence the state has” against the client. To a large degree, this is also true in immigration defense, particularly so since harsh immigration laws were enacted in 1996 and 1997, both making many more activities deportable, and removing several avenues of defense against deportation. While not arising weekly, often enough, in response to the student telling the potential client during an initial interview, “you can tell me everything, and I need you to; everything you tell me is confidential,” the client does. At this point, the client might reveal details — often about conduct that may have an adverse impact on the case if disclosed to the government–that may even make the person either deportable or wholly ineligible for the relief being sought.

So, can the client “tell you everything?” Do we really want to teach our students to use this terminology? Is it the “right” way to practice? Is it the “best” way? Or is it naïve, essentially serving the government’s interests and not the potential client’s?

In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All,” “Winning became everything.” ….

Had I been more inquisitive, perhaps the evidence would have come to light years ago. But I wasn’t, and my inaction contributed to the miscarriage of justice in this matter. . . .

My mindset was wrong and blinded me to my purpose of seeking justice, rather than obtaining a conviction of a person who I believed to be guilty. I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion. And that omission is on me.

  • Marty Stroud – March 2015 – Apology to Glenn Ford and to the justice system

Although we may have “second chances,” none of us can undo what has already been done. All of our actions and inactions have consequences – whether immediately or decades from now – that cannot be re-spooled.

Law students learn (hopefully) early on that the law provides remedies which, for the most part, merely substitute for what has been lost whether limbs, rights, freedoms, or life. And in some cases, there are wrongs that simply cannot be remedied. Sometimes, the best we can offer is an apology. The apology offered by prosecutor Marty Shroud to Glenn Ford is sincere; the author proffers no excuses and takes full responsibility for his own acts and omissions – and we should expect no less. I hope Mr. Shroud’s apology reminds those of us in legal education to pay attention to the mindset of our students and to challenge as well as guide them to better develop their professional consciences, mindful of the potential for causing lasting harm and their larger obligation to the legal system.

As educators, the first challenge is to admit when we ourselves are wrong, that we don’t have all of the answers, that the premises upon which we make our arguments can be flawed or judgmental, and that we don’t know everything. The second challenge is to help our law students learn the same. And, law school makes this challenge profoundly difficult for law students. Think about it. Nearly everything depends on “doing well” relative to others in law school – on performance and achievement by mastering content. Many law school and career opportunities depend on doing better than the next person. In a time of “personal truth” and “confirmation bias,” pushing students to take a sincere personal inventory can seem nearly impossible. In a more practical sense, teaching students how to admit mistakes and to take responsibility for those mistakes is difficult. I’m pretty sure there’s no grading rubric or assessment with columns for “makes mistakes,” or “admits to those mistakes” in the larger profession- and life-sense. And, while assigned reflective pieces may encourage students toward more honest personal assessment, those types of assignments are generally not in the mainstream podium classes.

A further impediment to meeting these challenges is what seems to me to be an almost embedded professional cultural insistence that admitting mistakes is a sign of weakness – as though only those who are never wrong are strong. This apology, however, is a singular example of potential change. The apology was forthright; it was both personal and made to the general public at a time when the public is particularly critical of our legal system. As a teacher, I hope my students are able to learn from this letter and remain mindful of the potential for inattentiveness, hubris, and the resulting harm not only to others, but to our entire justice system when we lose sight of the larger picture.

1L Contracts and The Remains of the Day

As law professors, we tend to teach in ways we were taught in law school, using methods we found effective as students.

For example, my very first law professor, Adrienne Davis, kicked off our first-semester 1L Contracts class with an unconventional assignment:  read the book, or watch the film: “The Remains of the Day.” What could this novel possibly have to do with first-year Contracts?  Professor Davis wouldn’t tell us. “You’ll see” she said.  “you’ll see.”  So I read the book.  Or I tried to. And then I became impatient about three chapters in because there was no contract dispute.  And my 1L brain was very angry.  “What is the point?!” my 1L brain screamed. So I watched the film.  And I still didn’t get it.  The story is about an English butler. It has nothing to do with Contracts.

So we 1Ls in Professor Adrienne Davis’s Contracts class were rather disgruntled.  “What was the point?” We silently asked her with our glares and our eye rolls.  “The point,” she said wisely, “was to give you a chance to contemplate duty.  Attorneys have duties to their profession and their clients.  The Butler in the book was grappling with his duty to his household.”

Professor Davis wanted us to consider what sort of attorneys we would be; what we saw as our professional roles and duties as lawyers. And that is what I invite my students to contemplate as well.  It is an invitation to tap into what I call “Self-Aware Professionalism.”

Socrates stressed the importance of self-awareness.  In 2007, law professor Paula Lustbader channeled Socrates when she wrote: “It is ironic that in institutions where the Socratic Method is the main currency, law schools do not do more to promote reflection.  Socrates himself states, ‘[L]ife without enquiry is not worth living.’ Through reflection and discernment, students develop skills to endure and excel with grace in humility in law school as well as in the profession.”

Reflection and discernment, as Lustbader wisely notes, have a place in legal education.  Her language about “students develop[ing] skills” could deceive the reader into thinking reflective learning is only useful in legal skills courses.  Yet, as my first-year Contracts professor also perceived, reflection and discernment have a place in traditional doctrinal law teaching as well.  Students learning legal doctrine surely benefit from a professor who creates space for critical reflection on the multifaceted causes and effects of that doctrine.  Reflective learning cultivates a robust and sustainable system of legal education.

Experts in the Legal Field Question the Bar Exam…

See this interesting article on the New York Times website discussing proposals to change the Bar Exam!

http://www.nytimes.com/2015/03/20/business/dealbook/bar-exam-the-standard-to-become-a-lawyer-comes-under-fire.html?ref=business&_r=0

Beyond Best Practices previewed at LegalED’s ILT2015

Several of the authors of chapters in the soon-to-be-released book, Beyond Best Practices in Legal Education, are speaking today at LegalED’s Igniting Law Teaching conference at American University Washington College of Law.

I am now hearing from Kristen Tiscione from Georgetown Law and then Ruth Anne Robbins will be up.  Earlier today we learned from Warren Binford, Susan Brooks and Paula Schaefer who are all also collaborators in the book.

The editors of BBP have assembled an amazingly talented group of law professors to guide us as we move into the next era of legal education. The more I hear from them, learn from them, the more excited I am for the book to come out later this year.

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